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The Supreme Court’s ruling on Stephen Harper’s inappropriate appointment of Justice Marc Nadon is a richly deserved rebuke to a headstrong prime minister.

Justice Marc Nadon at a parliamentary committee hearing in October 2013, on his nomination as a Supreme Court of Canada Justice. (Sean Kilpatrick / THE CANADIAN PRESS)

Fri., March 21, 2014

Prime Minister Stephen Harper’s hubris has come back to bite him. In a powerful and welcome ruling, the Supreme Court has just shot down Harper’s arrogant bid to throw the Constitution to the wind and name Justice Marc Nadon to a seat reserved for Quebec on the country’s highest court that he wasn’t eligible to occupy.

This is a hideously embarrassing but richly deserved rebuke to a headstrong Prime Minister and his hapless justice minister for their lack of judgment, high-handed disdain for the rule of law and disrespect for due process.

More importantly, as the Star’s Tonda MacCharles writes, it is an historic affirmation that the Constitution shields the Supreme Court from being tinkered with. The high court isn’t a creature of the federal government, the justices ruled. It is “constitutionally entrenched,” and was so even before the Constitution was patriated from the United Kingdom in 1982. Its essential features — notably its composition—can’t be changed at a prime minister’s whim. There must be a constitutional amendment with Parliament’s approval and the assent of all provinces.

All this amounts to a bold and reassuring affirmation of the court’s independence in the face of a prime minister whose political agenda eclipses all else.

Finally, the ruling ought to reassure Quebecers that the Constitution protects their province’s unique rights within the federation, at a time when Quebec Premier Pauline Marois and her Parti Québécois are struggling to assert the opposite in the heat of a provincial election campaign. The constitutional guarantee that Quebec’s distinct legal traditions and social values must be front and centre on the high court strengthens “the confidence of the people of Quebec in the Supreme Court as the final arbiter of their rights,” the justices found.

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In short, this is good news for every Canadian who values the rule of law, and federalism. And it’s bad news for those like Harper who believe that the courts should bend to the whims of the government of the day, and for separatists who argue that Canadian institutions are indifferent to Quebecers.

That much good, at least, has come from a Conservative fiasco. Harper set off a political and legal firestorm last fall when he appointed Nadon, a long-time Federal Court of Appeal justice who hadn’t lived in Quebec or practised law there for 20 years, to a Quebec seat on the high court. Nadon shares Harper’s view that judges aren’t legislators by default. “It’s not up to us to say this isn’t a good law, we’re going to redo it,” he told a parliamentary committee. “Our job is to apply the law.”

Critics, including the Quebec government, argued that Nadon’s appointment violated the special Supreme Court Act rules that govern Quebec appointments. The three Quebec judges must be appointed “from among” judges on Quebec’s Superior Court or appeals court, or “from among” current members of the provincial bar. As a federal judge living in Ottawa, Nadon didn’t qualify.

Adding fuel to the fire, Harper then rashly sought to legitimize Nadon’s appointment by unilaterally and retroactively trying to rewrite the Supreme Court Act via the budget omnibus bill, to let anyone who “at any time” was a member of the Quebec bar with 10 years standing take up a Quebec seat on the court.

Rightly, Chief Justice Beverley McLachlin and the majority of her colleagues on the nine-member court weren’t having any of it.

In a split but strong 6 to 1 advisory ruling, they struck down both Nadon’s appointment and the bid to rewrite the Supreme Court Act. Only Harper appointee Justice Michael Moldaver dissented. The case was heard by a seven-justice panel because Justice Marshall Rothstein, a Federal Court appointee, recused himself from hearing the case, and Nadon had not yet taken his seat on the court.

Sadly, this isn’t the first time Harper’s lack of good judgment has gotten him into trouble. His Conservative government earned the dubious distinction of being the first in Commonwealth history to be held in contempt by Parliament, in 2011, for abusing its powers and refusing to provide MPs with information about the cost of key programs. And his slippery handling of the Senate expenses scandal last year made a mockery of his pledge to govern with “integrity and transparency.”

Commenting on the Supreme Court ruling, Harper’s spokesman said he was “genuinely surprised.” Genuinely chastened would have been a more appropriate reaction. But that’s probably too much to expect from this prime minister, this government.

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